ACTA: EU/US monopoly protection ready for export to the rest of the world?

A near final draft of ACTA (the “Anti-Counterfeiting” Trade Agreement) has finally been released to the public (2nd October 2010)i. As anticipated from previous leaks, the agreement goes beyond addressing “counterfeiting” and seeks new standards in Intellectual Property (IP) law.

It is unfortunate that this agreement was not negotiated within the relatively open and transparent framework provided by WIPO. If there was more discussion, involvement and debate with consumers, scholars and NGOs from the beginning (rather than merely industry lobby groups), we may have reached a more appropriate agreement much earlier and with less suspicion from the public. That said the current draft is still ambiguous and woolly in parts; in contrast, the (much maligned) TRIPSii agreement is a beacon of linguistic clarity!

It is clear that the efforts of campaigning groups and concerned citizens have had a beneficial effect. The latest text has been stripped of the worst provisions. Our reading of the text is that ACTA now contain sufficient flexibilities to be consistent with current EU and UK law. However there are still concerns as to whether ACTA is fully consistent with US lawiii. It is clear nonetheless, that ACTA is covered with the fingerprints of (mainly) US large corporate lobbyists and US IP legislationiv.

In addition, previous drafts of ACTA have been criticised on the grounds that it may inhibit the transit, through the US or EU, of essential medicines to developing countries. These concerns highlight a need for greater clarity in EU law and possible changes to domestic legislation in some EU Member States. We would prefer a requirement on ACTA Parties to ensure domestic laws can not be abused to prevent such medicines reaching some of the poorest people in the world.

Domestically, one of our remaining concerns is that the ACTA text has some vague and woolly provisions concerning interim injunctions (or interim interdicts); “provision of reasonably available evidence” by an applicantv. In addition we are also concerned at the ambiguity in a section dealing with the disclosure of Internet subscriber information to rights holders, where a potentially very low threshold of evidence is envisaged (“whose account was allegedly used for infringement”)vi.

Internationally, the major concern is that ACTA provides a convenient tool to allow the US and EU to “encourage” other countries to acquiesce to ACTA provisions in return, for example, for access to US or EU domestic markets. The danger is that the legislation which might be applicable for an advanced, industrialised country like the US is wholly inappropriate for still developing countries. US and EU negotiators have consistently argued that ACTA would not necessitate changes to domestic legislation. Why else negotiate this deal, if not to impose it on countries which do not currently have US/ EU type laws?

The European Parliament will have an opportunity to vote on ACTA. The Parliament has already expressed dissatisfaction at the way ACTA has been negotiated and the lack of democratic oversight and democratic inputvii. We urge the European Parliament therefore to vote against this unnecessary and illegitimate international agreement.

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